Wednesday, 18 December 2019

Drinking alcohol before a shift not serious enough to justify dismissal

In a recent Fair Work Commission (Commission) decision, an employer’s contradictory drug and alcohol policy, and inconsistent application of that policy, resulted in the Commission ordering the reinstatement of a dismissed employee, despite finding there was a valid reason for his dismissal.

While the Commission agreed with the employer there was a valid reason for dismissal, ultimately, the Commission found that the employer’s disciplinary action in summarily terminating the employee for attending work while over the company’s breath alcohol limit of 0.00, was disproportionate to the employee’s conduct.

This decision emphasises the importance of having clear workplace policies, ensuring that those policies are well understood by management, and implementing those policies consistently across the workplace.

The applicant was an immigration detention centre officer with eight years’ service. He had been on a rostered day off when his employer (Serco) contacted him at 4.45pm to offer him a shift, with a briefing to commence at 5.45pm. After commencing work, the employee was selected for a random breath test and recorded a blood alcohol level (BAC) of 0.037.

Despite being aware of the positive test, the following day, Serco requested that the employee work a 12 hour night shift, which he accepted and completed.

Three days later Serco commenced an investigation into the employee’s BAC, resulting in Serco dismissing by the employee on grounds of serious misconduct for breach of the employment contract, enterprise agreement and company policies, including the Drug and Alcohol Policy (the Policy).

The employee initially stated that he had only consumed one beer earlier in the day, but later admitted that he had consumed a further two drinks.

The Commission found that the breach of Policy gave the employer a valid reason for dismissal. However, the reason for dismissal was not serious enough to justify summary dismissal.

The Policy stated that employees testing between 0.01 and 0.05 should be stood down and given a warning at the start of their next shift, and that dismissal could occur only where another positive blood alcohol reading was recorded. The policy also referred to ‘proven intoxication’ as serious misconduct justifying dismissal, however the policy did not define ‘intoxication’, leaving it to the employee’s manager to distinguish the meaning.

In a further apparent contradiction, even where an employee was found to be intoxicated, in addition to the option of dismissal, the Policy provided for consideration of, ‘disciplinary action short of dismissal, such as a warning or some lawful direction including that the Worker must undergo a rehabilitation program under the EAP.’

Furthermore, there were other employees who had tested positive to the testing of alcohol and had not been dismissed.

As such, the Commission found there were three reasons why the dismissal was not justified:

  • The Policy allowed for employees who tested positive to still remain employed, and receive a warning (unless serious misconduct is involved);
  • The employee consumed alcohol on his rostered day off, and therefore did not knowingly drink before a shift;
  • The employer invited the employee to work a 12 hour shift the day after he tested positive, which he duly worked.

Accordingly, the employee was reinstated with an order to maintain his continuous service.

Lessons for employers:

Employers should ensure that they have in place appropriate policies and procedures regarding drugs and alcohol in the workplace, and clear disciplinary processes arising from any breach of those policies. Where appropriate, policies should also include steps for testing employees, particularly where employees undertake high risk work, such as operating heavy machinery.

In addition, staff and managers should be aware and familiar with company policies and undergo appropriate training where required.

Case study: Medhat Morcos v Serco Australia Pty Ltd [2019] FWC 7675 (21 November 2019)


This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.